Thorsen and Carvan

FEDERAL CIRCUIT COURT OF AUSTRALIA

THORSEN & CARVAN

[2018] FCCA 2777

Catchwords:
FAMILY LAW – Parenting – whether a 12-year-old child should be forced to spend time with his father overnight – whether the mother is aligning the child with her – whether the father’s behaviour has contributed to the child’s lack of willingness to spend extended time with him - whether the lack of communication between the parents means the mother should have sole parental responsibility for the child – how much weight to give the child’s views.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC(2) & (3), 61DA(1), (2) & (4), 64B, 65DAC, 65DAE

Cases cited:
Mazorski & Albright [2007] FamCA 520
Tait & Densmore [2007] FamCA 1383

Applicant:

MS THORSEN

Respondent:

MR CARVAN

File Number:

DGC 1442 of 2016

Judgment of:

Judge Small

Hearing dates:

19 & 20 September 2018

Date of Last Submission:

20 September 2018

Delivered at:

Melbourne

Delivered on:

21 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr Gates

Solicitors for the Applicant:

Julie Taylor

Counsel for the Respondent:

Mr Carvan, self-represented

Solicitors for the Respondent:

Counsel for the Independent Children’s Lawyer

None

Mr Strong

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

All previous parenting orders in relation to the child [X] born 2006 (“the child”) are hereby discharged.
The parties shall have equal shared parental responsibility for making major long-term decisions about the child’s care, welfare and development.
The child shall live with the mother.
The child shall spend time and communicate with the father as follows:
(a)Each alternate weekend for a period of eight hours on a day and at times to be agreed and failing agreement, on each alternate Saturday from 9:00 a.m. to 5:00 p.m. commencing in the first weekend after the father’s (occupation omitted) contract ends in 2018;
(b)By telephone, Skype, Facetime or other electronic means twice weekly at times to be agreed between the parties and failing agreement on each Tuesday and Thursday between 7:00 p.m. and 7:30 p.m.;
(c)Between the months of June and September each year when the father is engaged in (occupation omitted), and in lieu of the time set out in sub-paragraph (a) hereof, upon the father providing four days’ written notice to the mother, from the conclusion of school until 8:30 p.m. on each alternate Wednesday or Thursday;
(d)On Christmas Day 2018 and in each alternate year thereafter by agreement between the parties and failing agreement between 9:00 a.m. and 1:00 p.m.
(e)On Christmas Day 2019 and in each alternate year thereafter by agreement between the parties and failing agreement between 1:00 p.m. and 9:00 p.m.
(f)At other times by agreement between the parties in writing from time to time, taking the wishes of the child into account.
Unless otherwise agreed in writing, all changeovers shall take place at Town E McDonalds restaurant save for the time spent pursuant to paragraph 4(c) hereof when the father shall collect the child from his school at the commencement of time.
In the event that any period of time spent pursuant to these orders is cancelled, for whatsoever reason, that period of time shall be made up in its entirety within the next three months.
For six months from the date of these orders the time spent between the father and the child shall not take place at the paternal grandparents’ farm unless the child states of his own volition and without being asked that he wishes to go there.
The mother shall do all things possible to encourage the child to spend more time with the father than is provided in these orders, including overnight time, and she shall specifically tell the child that she supports him spending overnight time with his father.
Communications between the parties shall be in writing, including but not limited to text messages and email.
Neither parent shall make arrangements for the child nor enrol him in any activity during the time that he spends with the other parent pursuant to these Orders without the consent of the other parent having first been obtained in writing.
The mother shall make the child available for and take him to a meeting with the Independent Children’s Lawyer, and the Independent Children’s Lawyer shall explain the meaning of the orders that relate specifically to the child to him, and more particularly, she shall inform the child that the commencement of overnight time with his father is at his discretion, that his mother supports him spending overnight time with his father, and that the Court has made these Orders believing them to be in his best interests.
Within fourteen days of the date of these Orders the mother shall attend upon her general practitioner and obtain a referral under a mental health plan for counselling to assist her to deal with the anxiety she feels in relation to the child spending time with the father and the causes of that anxiety, and she shall attend upon the counsellor to whom she is referred and comply with all directions of that counsellor.
As soon as is practicable, the father and the child shall attend upon a child and family therapist nominated by the Independent Children’s Lawyer (“the therapist”) for the purpose of counselling to improve their relationship and shall comply with all directions of the therapist until the therapist is satisfied that such counselling is no longer necessary or it has become clear to the therapist that there is no point in continuing the counselling, and the cost of that counselling shall be borne equally by the parties.
The mother shall ensure that the child’s school makes available to the father, at his cost if any, all school reports, information about parent-teacher interviews, sporting or cultural events, and information about all prizes or awards won by the child, and the father shall be at liberty to attend parent teacher interviews and all sporting or cultural events usually attended by parents.
The parties shall each inform the other as soon as is practicable of any serious illness or injury suffered by the child which requires hospitalisation or treatment by a medical or allied practitioner while he is in their respective care, and they shall authorise any treating medical or allied practitioners who are caring for the child to speak to the other about the child’s treatment.
The parties and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s household to or in the presence or hearing of the child and from permitting any other person to do so;
(b)applying any form of corporal punishment to the child;
(c)discussing these proceedings with or in the presence or hearing of the child (save to explain any changes in his living circumstances to him) and from permitting any other person to do so; and
(d)allowing the child to read, or have read to him, any portion of the Court’s Reasons for Judgment in this matter.
The order of Judge Small of 3 April 2018 appointing the Independent Children’s Lawyer shall be discharged upon the completion of the meeting specified in paragraph 11 hereof.
The Amended Initiating Application filed 21 March 2018 and the Response filed 27 March 2018 are otherwise dismissed.
The Contravention Applications filed by the Respondent on 28 March 2018 and 22 May 2018 respectively are adjourned to the circuit sittings of the Court in Morwell commencing on 8 April 2019.

IT IS NOTED that publication of this judgment under the pseudonym Thorsen & Carvan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1442 of 2016

MS THORSEN

Applicant

And

MR CARVAN

Respondent

REASONS FOR JUDGMENT

Introduction

[X] (known as “[X]”) is 12 years old, having been born on 2006.
He is the only child born to the relationship between Ms Thorsen (“the mother” or “Ms Thorsen”) and Mr Carvan (“Mr Carvan” or “the father”).
[X] currently lives with his mother and has done so ever since his parents’ separation when he was about two-and-a-half years old.
The mother seeks orders for [X] to live with her and spend time with his father pursuant to his wishes, although she indicated at trial that she would not oppose an order for day time only, with any overnight time to be at [X]’s sole discretion.
She also seeks an order that she have sole parental responsibility for [X].
The father seeks orders that the child spend day time with him for a few months, and while he concedes that [X] does not wish to spend overnight time with him, and that it is probably not in [X]’s best interests to force him to do so, he would like overnight time to recommence in about December 2018.
He seeks to retain equal shared parental responsibility for [X] with [X]’s mother.
The issues to be decided in this case are therefore:
A.Whether the parties should equally share parental responsibility for [X] or whether the mother should have sole parental responsibility;
B.What kind of day time [X] should spend with his father; and
C.Whether there should be an order for him to spend overnight time with his father.

Background

Ms Thorsen was born on 1972 and is therefore 46 years old. She lives in Town A and works as an (occupation omitted) at Town B, where [X] is currently in Grade 6. She is in good health, save that she suffers from some anxiety.
Ms Thorsen has one other child, a now adult daughter. Her de facto relationship with Mr S ended a few months prior to trial.
Mr Carvan was born on 1974 and is now 44 years old. He has repartnered with Ms C (“Ms C”) although they do not live together. Ms C lives in Town A while Mr Carvan lives in Town C.
Mr Carvan works as a (occupation omitted) in the (location omitted) during winter months and on his parents’ farm at Town C for the remainder of the year.
The parties separated in January 2009 after a 6 year relationship, after which [X], then two-and-a-half years old, lived with his mother and spent time with his father by agreement between the parties.
In May 2016, Mr Carvan issued proceedings in this court to obtain orders for [X] to spend time with him in a certain regime, and those proceedings resulted in Final Orders being made by consent on 29 August 2016.
Those orders provided for the parties to have equal shared parental responsibility for [X], for him to live with his mother, and for him to spend alternate weekends, half school holidays and other special days with his father, and they also made provision for Mr C’s (occupation omitted) rosters in the winter months.
According to Mr Carvan, that time proceeded very well, although Ms Thorsen says there were always difficulties between the parties.
What is not in dispute is that, after a weekend with his father in November 2017 where his father taught him how to use a small chainsaw, and an incident two weeks later where his father took [X] to task about his version of that event as told to his mother, [X] refused to spend time with his father, and Ms Thorsen ceased all time between [X] and Mr Carvan. She then issued these proceedings seeking a change in the 2016 orders.

Procedural History

The matter commenced with Ms Thorsen filing an Initiating Application, Affidavit in Support and Notice of Risk on 22 December 2017.
In that Application, Ms Thorsen simply sought, as a final order:
“That the mother be excused from particularising the Final Orders sought in these proceedings, pending the obtaining of a Family Report”.
She filed an Amended Initiating Application together with an Affidavit in support on 21 March 2018. That Application sought only orders which would allow [X] to obtain a passport without the consent of Mr Carvan as final orders. Ms Thorsen deposed that she needed those orders so that [X] could participate in a school exchange program to (country omitted) in late 2018.
However, she also sought, as interim orders, the suspension of all time between father and son, the appointment of an Independent Children’s Lawyer to represent [X]’s interests, a Family Report, and an order that [X] be permitted to go to (country omitted) for the exchange program “in or about 2018”.
I note, therefore, that Ms Thorsen’s lawyers have not filed a formal Application for parenting orders in relation to [X]’s everyday living arrangements. Ms Thorsen’s proposal was clear at trial, although prior to the filing of her Outline of Case Document on 10 September 2018, the father and the Independent Children’s Lawyer would not have had a clear picture as to the case that they were meeting.
Mr Carvan filed a Response, two Affidavits in support and a Notice of Risk on 27 March 2018 seeking that the 29 August 2016 orders remain in full force and effect, and that, in addition, there be orders for make-up time for the period when his time with [X] was forfeited because of the mother’s refusal to allow [X] to spend time with him.
His interim orders sought included a Watch List Order, an order for a Family Report and orders that the parties jointly apply for a passport for [X] and, rather paradoxically, that he be permitted to go to (country omitted) for the school exchange.
On 28 March 2018, Mr Carvan filed a Contravention Application and supporting Affidavit alleging that Ms Thorsen had contravened the Orders of 29 August 2016 by refusing to allow [X] to spend time with him over the 2016 Christmas and holiday period as ordered in those Orders.
Those matters came before me in the Duty List of the circuit sittings of the Court at Morwell on 3 April 2018, when Interim Orders were made by consent providing for a private Family Report and the appointment of an Independent Children’s Lawyer. The matters were otherwise adjourned to the Duty List at the following circuit sittings of the Court on 30 May 2018.
On 22 May 2018 Mr Carvan filed a further Contravention Application alleging that Ms Thorsen had failed to inform him of an accident [X] had suffered when he fell off his bike and fractured his arm.
The Family Report of psychologist Mr T (“Mr T”) dated 25 May 2018 was annexed to an Affidavit sworn by him on 31 May 2018 and filed on 5 June 2018.
On 30 May the matter came before me at the Morwell sittings and again, Orders were made by consent, those orders allowing [X] to travel to (country omitted) for the school exchange program, and for the father to facilitate that travel by signing [X]’s passport application within seven days.
The matters were otherwise adjourned to the next circuit sittings of the Court commencing 17 September 2018 for Final Hearing (“the trial”).
The mother filed her trial Affidavit affirmed 27 August 2018 on 28 August 2018, while the father did not file a trial Affidavit, relying on his previous Affidavit affirmed on 26 March 2018 and filed 27 March 2018.
The mother filed her Outline of Case Document on 10 September 2018 and the father filed his on 13 September 2018. Counsel for the Independent Children’s Lawyer handed up his Outline of Case Document on the first morning of trial.
Trial commenced on 19 September 2018 and ran for two days.
Witnesses were Ms Thorsen, Mr Carvan, Mr Carvan’s partner Ms C, and Mr T, all of whom underwent cross-examination.
At the conclusion of the trial on 20 September 2018, I informed the parties that I would do my best to deliver judgment the following day.
I was able to make Final Orders on 21 September and advised that I would publish my Reasons within 14 days.
These are those Reasons for Judgment.

Issues and Evidence

It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.

Issue A.Whether the parties should equally share parental responsibility for [X] or whether the mother should have sole parental responsibility

The father wishes to retain equal shared parental responsibility with Ms Thorsen, while the mother wishes to have sole parental responsibility for [X].
The Law
The law in relation to parenting matters is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The law in relation to parental responsibility for children is found in Division 2 of Part VII.
Section 61DA(1) of the Act states that when making a parenting order in relation to a child, the court must apply a presumption that it is in the child’s best interests for the child’s parents to bear equal shared parental responsibility for the child.
Section 61DA(2) states that the presumption does not apply if the court has reasonable grounds to believe that a parent has engaged in child abuse or family violence.
Section 61DA(4) states that the presumption may be rebutted by evidence that it would not be in a child’s best interests for his or her parents to jointly share parental responsibility for the child.
In this case, both parents have engaged in behaviours which fall under the definition of family violence set out in s.4AB of the Act, and it is common ground that [X] has been present at times when his parents were arguing quite angrily about the time he would spend with his father.
In other words, these parents have exposed [X] to family violence.
Exposing a child to family violence is an act of child abuse in itself under s4(1) of the Act and it will no doubt come as a shock to [X]’s parents to learn that they have engaged in child abuse as defined by the Act.
The result of the foregoing is that the presumption does not apply pursuant to s.61DA(2).
That is not the end of the matter, however, as the court may make an order for equal shared parental responsibility of a child if it believes such an order to be in the child’s best interests.

The father’s evidence

It is the father’s case overall that Ms Thorsen has so influenced [X] that [X] has become aligned with her to the extent that Mr Carvan is being excluded from [X]’s life.
Mr Carvan is adamant that he wants to be a major figure in [X]’s life and that he wishes to be involved in decisions about his welfare.
He says that if an order is made for Ms Thorsen to have sole parental responsibility for [X], he will be even more marginalised and eventually he will be entirely excluded from his son’s life.
He acknowledges that communication between the parties has been difficult, but says that when it comes to making major decisions about [X]’s life, the parties have been able to co-operate to the extent that decisions like where [X] goes to high school next year have been made quite easily.
At trial he conceded that the parties should probably only communicate in writing (that is by text or email), and that his practice of recording conversations and interactions between the parties was probably unhelpful in the communication process, and that it did not contribute to trust between the parties.
He rather grudgingly accepted that his behaviour towards [X]’s mother should have been better and that he could work on improving that in the future.

The mother’s evidence

Ms Thorsen denies that she has aligned [X] to her view in any deliberate or malicious way, and says that it is Mr C’s behaviour that has led to the difficulties between the parties and to [X]’s reluctance to spend overnight time with him.
It is her evidence that communication between the parties is so difficult that it is in [X]’s best interests for her to make all major decisions in relation to him without the need to agree with Mr Carvan.
She gives several examples of such difficulties, the major one being that when she asked Mr Carvan if he would pay half of [X]’s high school fees in July 2018, he responded with a terse and angry message saying that he would do so only if she agreed to return to the orders of 29 August 2016.

The expert evidence

Psychologist Mr T provided a Family Report dated 25 May 2018 and he is very clear that the greatest risk to [X]’s wellbeing is the ongoing conflict between his parents.
Mr T does not address the issue of parental responsibility specifically in his Report, but when asked about that issue at trial, he stated that he thought that orders for sole parental responsibility could lead the other parent to feel as though he/she is the lesser parent, and because the child knows that it is one parent who makes the decisions about the child, the other parent can be “de-authorised” by the child, which might make parenting interactions even more difficult.
The Independent Children’s Lawyer changed her view between the commencement and the end of the evidence at trial and it was her closing submission, through her counsel, that the court should make an order for equal shared parental responsibility.
The Independent Children’s Lawyer was concerned that the current conflict between the parents may erode [X]’s sense of having two parents if his father were excluded from being involved in the major decision about his life.

Decision: Issue A

This child is currently clearly emotionally aligned with his mother, although I cannot make a positive finding as to the cause for that alignment. She has historically made most of the important decisions about his life, although some appear to have been made jointly with his father.
I am concerned that [X]’s alignment with his mother, if combined with her having sole parental responsibility for him, could easily lead to a situation where [X] could become estranged from his father entirely, which would not be a desirable outcome in a situation where [X] is observed to have a good relationship with his father and to want to spend some time with him.
He is entering his adolescence, a particularly vulnerable time for a child, and I find that it is in his best interests for his father to have involvement in his life as a full parent – that is, one who participates and co-operates with his mother to make decisions that are focussed on his welfare.
Both parents are responsible for the situation they find themselves in and for [X]’s exposure to their conflict.
Only they can change the current situation so that [X] is permitted to see both parents as co-operative decision-makers in relation to his welfare.
I will therefore make an order for [X]’s parents to jointly share parental responsibility for him.
S.65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility, and I set that section out here for the benefit and attention of the parties:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
65DAE No need to consult on issues that are not major long‑term issues
(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.

Issue B.What kind of day time [X] should spend with his father

The mother’s initial position, as set out in her Outline of Case Document, was that the time [X] spends with his father should be left entirely up to [X].
However, by the end of the trial she had modified that position to say that orders should be made for day time between father and son, but that any decision about the progression to overnight time should be left to [X].
The father made very clear that he wished for the orders of 29 August 2016 to be reinstated, but he was realistic in his view that it was unlikely that such orders would be made given the history of the matter since that date.
In those circumstances Mr Carvan’s proposal was for [X] to spend 8 hours with him every second weekend during the day in the summer months and 5 hours on each alternate Wednesday afternoon/evening during the winter months.
He would like provision for some specific time at Christmas, but because Fathers’ Day occurs during winter, when his availability is less predictable, he did not see an order for [X] to spend time with him on Father’s Day as being very practicable. He noted that this year, when [X] was asked if he would like to spend some time on Fathers’ Day with him, [X] declined.
Mr T’s view was that the exact number of hours was irrelevant as it is the quality of time spent rather than the quantity that determines the quality of a relationship.
The Independent Children’s Lawyer submitted that there should be an order for at least 5 hours of day time spent between [X] and his father, with a “mechanism” for that to proceed to overnight time when [X] is ready.
Decision: Issue B
Given that the mother now supports the making of orders providing for day time between [X] and his father, and considering that [X] has been spending day time successfully since the last interim orders were made on 30 May 2018, I will make orders for him to spend 8 hours with his father on each alternate weekend.
Those times will be spent away from the father’s parents’ farm for the first six months unless [X] positively indicates, without being prompted, a desire to visit the farm.
That is because it is [X]’s clear wish not to spend time at his grandparents’ farm as he says he feels isolated and bored, and while his father insists that [X] enjoys his time at the farm when given emotional permission to spend time with him there, Mr T’s evidence is that at [X]’s age and stage of development, his need for some autonomy should be respected.
Changeover will remain at the venues agreed by the parties in the Orders made by consent on 30 May 2018.

Issue C: Whether there should be an order for [X] to spend overnight time with his father.

The mother is clear that the progressions to overnight time between [X] and his father, if any, should be governed entirely by [X]’s wishes.
[X]’s father says he understands that making an order for [X] to stay with him overnight, especially as [X] is currently saying that he does not wish to do so, is unlikely to be either productive or in [X]’s best interests, and could have the undesired effect of pushing [X] away.
He says he feels helpless in relation to this and would like [X] to begin spending overnight time in about December 2018, although he did not give a reason as to why it should begin at that time.
Mr T’s evidence is that [X] should not be forced to spend overnight time with Mr Carvan given [X]’s clearly stated views and his need for some autonomy and respect for his wishes.
The Independent Children’s Lawyer simply says that any orders should contain a “mechanism” for time to progress to overnight.

The Law

An order about how much time a child should spend with a parent is a parenting order as defined in s64B of the Family Law Act 1975 (Cth) (“the Act”)
As previously stated, the law in relation to parenting orders is found in Part VII of the Act.
The objects and principles underlying Part VII are set out in Section 60B and I set those objects and principles out here for the benefit of the parties:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA makes clear that when a court is making a parenting order, its “paramount consideration” must be the child’s best interests.
S60CC of the Act sets out the issues the court must consider when deciding what orders to make in a child’s best interests and I will consider the evidence in relation to each of those issues in turn.

s.60CC Primary considerations

The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

The meaning of the word “meaningful” in s.60CC(2)(a) has been discussed in several cases in this Court and in the Family Court of Australia[1].
[1] See, for instance, Brown J’s remarks in Mazorski & Albright [2007] FamCA 520 or Cronin J’s remarks in Tait & Densmore [2007] FamCA 1383
As one would expect, “meaningful” is said to mean “important”, “advantageous”, “significant”, “valuable”, “healthy”, and “worthwhile” to the child. It is said to involve the parent providing a positive role model to the child so that the child learns what it is to be a productive member of the community, and indeed what it is to be a parent.
In Mazorski & Albright,[2] Brown J made the point that the word is a qualitative adjective rather than a quantitative one. That is, the meaningfulness of the relationship between a child and his/her parents depends not on the amount of time spent with them, but on the quality of that time. I note that that statement accords with the view of Mr T.
[2] Mazorski & Albright [2007] FamCA 520
In this case, it is clear from the evidence before the Court that [X] has a “meaningful” relationship with both parents. He loves and is comfortable with both, although it is clear that his primary attachment is to his mother.
However, the Court does have some concerns about the role model shown to a child when his parents are in clear conflict about his care arrangements.
In this case, it is possible that [X] will learn that being a parent means being in conflict, or that parents cannot agree about their children’s care, and he may even come to believe that he is the cause of that conflict.
It was Mr T’s evidence at trial that there could be serious consequences for [X]’s mental health in the future if he continues to be exposed to the seriously toxic relationship between his parents.
If he is to continue to have a “meaningful” relationship with both parents, the conflict between them simply must end, and that means that both parents must be prepared to put their animosity towards the other as a former partner aside and strive to co-operate in a civil manner as parents for [X]’s sake. [X] deserves no less.
It is, of course, axiomatic that any Orders need to protect [X] from harm, whether physical, emotional or psychological. That means I must craft orders that protect him as much as possible from the conflict between his parents, who currently are in significant dispute about the way he should be raised.

Additional considerations

Additional considerations are:

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

[X] is 12 years old. Mr T’s view is that his sense of autonomy is to be encouraged and nourished and that his views should be listened to.
[X]’s clearly expressed view is that he does not wish to spend overnight time with his father and he is of an age where his views, while not determinative, must be seriously considered.

(b) the nature of the relationship of the child with:

each of the child’s parents; and
other persons (including any grandparent or other relative of the child);

[X] has a very close, supportive and loving relationship with his mother. That is evidenced in Mr T’s report supported by his evidence at trial, by the evidence of the mother and also, rather perversely, by the evidence of the father who says that [X] is aligned with his mother to the extent that he cannot be apart from her even for short periods.
The mother’s evidence is that she is receptive to [X]’s needs and in tune with his personality.
The father, when observed with [X], was seen to have a comfortable and close relationship with him and Mr T saw nothing to concern him about that relationship.
However, the difference between the parties in parenting styles may be seen as a major factor in their inability to agree on [X]’s upbringing and I will return to that matter later in these Reasons.
Mr Carvan reports a generally positive relationship with [X] when [X] is with him, although there have been times, and one day in particular in March 2017, when [X] was “insolent” and would not do what Mr Carvan wanted him to.
Mr Carvan’s response to [X]’s misbehaviour is a significant cause of dispute between the parties.
[X]’s relationship with Mr Carvan’s partner, Ms C, is not really described in any detail other than that Ms C considers that when [X] is with her and Mr Carvan, [X] is in her care as well.
Similarly, there is little if any evidence about the nature of [X]’s relationship with his paternal grandparents, or indeed any of his maternal family other than that he has cousins with whom he gets along well.

(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

to participate in making decisions about major long‑term issues in relation to the child; and
to spend time with the child; and

to communicate with the child;

It is Ms Thorsen’s evidence that it is she who has made most of the decisions about long-term issues in [X]’s life, mostly, she says, because it has been too difficult to consult Mr Carvan as she is often met with rigid positions and verbal abuse.
She spends most of [X]’s waking hours close to him as she works at (employer omitted), and she said at one point during trial that they were “always together”.
Mr Carvan says Ms Thorsen has excluded him from many decisions but that when he has had the opportunity he has participated in those decisions to positive effect for [X].
Mr Carvan says he has always wanted to spend as much time with [X] as possible but that he has experienced Ms Thorsen as not being willing for [X] to spend extended periods with him, despite court orders being in place that he do so. He believes Ms Thorsen has sabotaged his time with [X], in particular by organising activities for [X] during the time he is supposed spend time with his father, and that [X]’s current reluctance to spend extended time with him is none of his doing.
As I said to the parties at trial, the truth about the relationships [X] has with his parents is probably somewhere between those two positions.

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

The question of child support formed a significant part of the evidence adduced at trial.
Mr Carvan pays about $34 per month for [X]’s support pursuant to an Assessment made by the Department of Human Services (Child Support).
It was his evidence at trial that he earns about $20,000 as a (occupation omitted) from June to September each year, and that he earns another $5,000 or so from (employment on parents farm).
However, when pressed, he said that while he earns no specific income from the work he does on the farm, his parents pay all his expenses during the spring to autumn months.
When pressed further, he agreed to pay half of [X]’s education expenses when he goes to High School in 2019.
However, I note that his initial response to Ms Thorsen’s request that he do so in July this year was to be abusive and to try to use the school fess as leverage to spend more time with [X].
As I said to him at trial, children are not commodities to be bargained with.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

[X] is clearly aligned with his mother and his primary attachment is with her.
Mr Carvan believes that [X] cannot tolerate being away from his mother for any extended periods and says that the reason [X] will not be going to (country omitted) as part of his school’s exchange program this year is that he is not able to separate from his mother to do so.
It is his evidence that after Ms Thorsen took him to court in relation to obtaining a passport so that [X] could go to (country omitted), it became clear that Ms Thorsen would not be taking part in the exchange program trip and [X] decided not to go himself.
That general proposition seems to be supported by the mother, who says that [X] becomes very upset at the thought of spending overnight with his father, although she blames Mr Carvan’s behaviour when [X] was spending overnight time for that reluctance.
There is some evidence that forcing [X] to spend overnight time would have the effect of causing him to further reject his father, and therefore be completely counter-productive.
Mr T’s evidence at trial was that the risks in making such an order were that [X] might not comply with it, that it might increase his feelings of stress and anxiety, and that it might indeed jeopardise what relationship he has with his father. It was Mr T’s view that the lines of communication between Mr Carvan and [X] should be kept as open as possible and that if Mr Carvan were to follow [X]’s lead and participate in activities [X] enjoys with him, [X] might well wish to spend more time with him.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

[X] lives in Town A with his mother, while his father lives in the town of Town C, about an hour-and-a-half away via the (highway omitted). I note that Ms C also lives in Town A.
While that time and distance is not insignificant, it does not seem to have affected Mr Carvan’s ability to spend day time with [X], and he has been doing so since Orders for such time were made by consent on 30 May 2018.
However, when [X] was to spend weekend overnight time with his father, he was to catch a public bus at the commencement of that time on Friday afternoons.
It was Ms Thorsen’s evidence that [X] was so distressed at the prospect of spending overnight time with his father that on the first occasion he was to catch the bus, he simply refused to do so and left the bus. She says that she tried to encourage [X] by telling him that the time with his father would be fun, but that he was inconsolable and she took him home after advising Mr Carvan that he would not be attending on that weekend.
That, of course, is nothing to do with the distance or expense associated with [X] spending time with his father.
The distance is exacerbated during winter months when Mr Carvan is (occupation omitted) at Town D, although [X] has visited him at Town D at times.

(f) the capacity of:

each of the child’s parents; and
any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;

There is little doubt that both parties are able to attend to and provide for [X]’s material needs – he is well housed, clothed and fed.
It is in the realm of [X]’s emotional needs that the Court has some significant concerns.
The mother allowing [X] to control how much time he spends with his father both over empowers him and places an unnecessary burden on him, although the behaviour of Mr Carvan in abusing Ms Thorsen and confronting [X] unnecessarily about what he told his mother about events occurring at the farm is similarly concerning in this context.
Mr Carvan will need to learn to recognise and be more sensitive to [X]’s needs, and to put them before his own if he is to be the good parent that he thinks he is and wants to be.
Similarly, Ms Thorsen will need to learn to recognise that her anxiety about Mr Carvan, which might well be well-founded historically, becomes detrimental to [X] when he is exposed to it. Indeed, there is evidence that [X]’s anxiety, for which he has been receiving counselling, is to some extent a response to that of his mother.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

The overall impression I had of the lay witnesses in this matter is that none was particular emotionally mature. The parents have conducted a conflictual relationship for almost the whole time since their separation nearly ten years ago, and the effect of that conflict on [X]’s emotional development cannot be underestimated.
While both were able to reflect about their past behaviour, it was only when Mr Carvan was pushed under cross-examination that he was able to consider that his behaviour might have been unacceptable or even untoward.
Mr Carvan is an uncomplicated man and I did not get the impression that he would consider changing his parental behaviour as a result of any of the matters he was asked to consider at trial.
I did get the impression that, while Ms Thorsen is just as convinced she is right, she is more willing to consider alternatives in relation to some of her behaviour.
Mr Carvan’s background as having been raised on his parents’ farm, and the expectation he has that [X] will be just as interested in farm life as he is, was a significant feature of his matter. [X] needs to be his own person, and his failure to live up to his father’s expectations in that regard, and more particularly his father’s response to that failure, will influence his sense of identity and confidence as an adult.
There is one other issue that I consider significant in this context.
Mr T recommended that [X] undergo assertiveness training to assist him with his anxiety and general lack of maturity in relation to being away from his mother. There is little doubt that [X] would benefit from that training/counselling.
I will not make an order for such training, but strongly recommend that [X] take part in it, and that the mother immediately make arrangements to organise it for him.

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant factor in the current proceedings.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

These parties’ difference in parenting styles is perhaps at the heart of this matter.
Ms Thorsen sees [X] as a sensitive and emotional child who prefers reading books and playing computer games to physical outdoor activity, although she is clear that he loves (hobby).
She says that he is old enough to decide whether he wants to spend overnight time with his father and that it is his father’s behaviour and parenting style that is the cause of [X]’s reluctance to stay with him overnight.
Ms Thorsen cites the fact that Mr Carvan taught [X] to drive motor vehicles on the farm from the age of six, that he insists that [X] helps with outdoor farm work when he is spending time with his father, and that he taught him how to use a small chainsaw last November, when [X] was about 11½, as examples of the father’s insensitivity to [X]’s developmental needs. Indeed, it was as a result of [X] learning to use the chainsaw, and how he described that to his mother, that led to a confrontation between [X] and his father two weeks later, which in turn led to [X] refusing to see Mr Carvan at all until orders were made in this court on 30 May 2018.
Ms Thorsen has seen herself as the only parent with responsibility for [X]’s long-term care, and has failed to consult Mr Carvan when making arrangements for [X], such as his (sport) lessons, which interfere with [X]’s time with his father. Such decisions do not make for cooperative parenting.
Mr T stated that Ms Thorsen’s style of parenting is at the “permissive” end of a control continuum.
Mr Carvan, in stark contrast, says that [X] is still a child, that he enjoys outdoor activities on the farm (although he accepts that [X] has a genuine fear of horses), and that he should be punished when he misbehaves.
He accepted that Ms Thorsen’s description of the way he disciplined [X] in March 2017 when [X] was rude to him and refused to do as he was told was essentially correct. That description was of [X] being angrily dragged from a chair by his wrists and being forced to go outside when he refused his father’s request to drive a motor vehicle into a garage.
Mr Carvan’s evidence was that on that occasion [X] had been insolent and rude to him and Ms C all day, and that he disciplined [X] to let him know that his behaviour was unacceptable. He sees nothing wrong in the way he disciplines his son, and he sees his parenting style as perfectly appropriate and reasonable. It is his view that it is not healthy for [X] to be always either reading or playing computer games and that he needs to spend time in physical activity. He accepts that [X] enjoys (sport), but understandably resents the fact that Ms Thorsen enrolled him in (sport) lessons at times when [X] was supposed to be spending time with his father.
It is clear to the court that Mr Carvan, who was raised on his parents’ farm, and who loves outdoor activities, would dearly like his son to enjoy the same activities as him. That is of course understandable, but Mr Carvan will have to come to terms with the fact that [X] is his own person, and that he might not share his father’s love of the outdoors.
When asked whether he was disappointed that [X] appeared not to share his interests, ([X] had told Mr T that he was “(not a farm boy”), Mr Carvan said that he would feel slightly disappointed if that were [X]’s genuinely held and independent view, but that he would feel major disappointment if that view were being influenced by [X]’s mother, which he firmly believes to be the case.
I note that Mr Carvan worked for some 20 years as a (occupation omitted), but he simply could not see at trial that that might provide a point of commonality between him and his son upon which they could build a positive relationship.
Mr T described Mr Carvan’s parenting style as falling towards the more rigid and authoritarian end of the control continuum.
It was Mr T’s evidence that an authoritative (rather than authoritarian) and loving parenting style, which results in a child having clear behavioural boundaries while still being very aware that he is loved, is the optimal style of parenting for the positive emotional development of a child.
It would appear that neither of [X]’s parents is currently providing the optimal balance of those two factors in the way they parent [X].

(j) any family violence involving the child or a member of the child’s family;

I have already stated that the conflicted behaviour and continuing mutual verbal abuse between the parents constitutes family violence. Each parent blames the other for that abuse and I find that both are responsible for it.

(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

(i)     the nature of the order;
(ii)    the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)   any findings made by the court in, or in proceedings for, the order;
(v)     any other relevant matter;

As far as the Court is aware, there have not been any family violence orders between the parties in this matter.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

[X] is 12 years old. He needs certainty in his life after years of conflict between his parents.
However, unless his parents can truly reflect on their own behaviour and attitude toward each other, and make genuine efforts to modify that behaviour and attitude, there can be no guarantee that there will not be further proceedings in the future, although that would only be even more detrimental for their son.

(m) any other fact or circumstance that the court thinks is relevant.

There is no other fact or circumstance that the Court thinks is relevant in this matter.

Decision: Issue C

When I take all the above evidence into account, and in light of the matters set out in s.60CC of the Act, I find that, on balance, it is not in [X]’s best interests for the Court to make orders for him to spend overnight time with his father. Such orders, on the evidence of Mr T and Ms Thorsen, are more likely to entrench [X]’s views than to encourage him in repairing and developing his relationship with his father.
However, while I will craft orders that leave that question in his hands, I will also make orders that make his decision about that matter as easy for him as possible.
It is my view that the sooner [X]’s relationship with his father is normalised to the extent that he feels he is listened to and that his father has a genuine authoritative relationship with him, the better, and that normalised relationship would include overnight and holiday time similar to that provided for in the orders of 29 August 2016.

Conclusion

These parties will be [X]’s parents for the rest of their lives. Their son is approaching his adolescence, one of the more challenging periods in a child’s life, when he will be exploring his autonomy and developing his self-esteem in the context of both peer relationships and the parenting he receives.
If the parties cannot learn to genuinely put his needs, happiness and welfare before their own, then they will not be the parents they wish to be, and the only loser will be [X].

I certify that the preceding one hundred and seventy two (172) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 2 October 2018

[2018] FCCA 2777

21 September 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Injunction

Jurisdiction

Natural Justice

Procedural Fairness

Remedies